Fractional resurfacing and the standard of care

David J. Goldberg, M.D., J.D.Dr. Laser, a well-known and respected dermatologic surgeon, purchased a used fractional carbon dioxide laser from another physician. Dr. Laser undertook extensive training in carbon dioxide laser resurfacing and had a good knowledge of facial anatomy and wound healing. His laser, purchased at a bargain-basement price, was a laser that could be used so aggressively that its impact on the skin was akin to the old full field non-fractional lasers of 20 years ago. Dr. Laser performed twenty full-face laser-resurfacing procedures with all patients being happy with the results. When challenged at a recent meeting about the use of such a continuous wave laser for resurfacing, Dr. Laser responded by suggesting that he was expert at this technique.

Recently, Dr. Laser treated his twenty-first patient, a 55-year-old woman with Class II rhytids and photodamage. The technique was performed in an identical manner to that of the previous procedures. Unfortunately, his patient had a protracted course of healing with resultant significant hypertrophic scarring.

The scarred plaintiff brought a lawsuit alleging malpractice by Dr. Laser. The plaintiff’s expert, a well respected, cosmetic surgeon, testified that Dr. Laser’s use of a fractional laser in a mode similar to a full field continuous wave, non-pulsed carbon dioxide laser, represented a deviation in the standard of care. The expert contended that a reasonable medical practitioner would not use a continuous wave laser for cosmetic laser resurfacing.

Dr. Laser, testifying on his own behalf, set forth numerous manuscripts from 20 years ago, that such lasers could be used for such procedures. He contended that such papers proved that his practice was in accordance with the standard of care, even if such a technique was not used by most.

What is the standard of care?

The standard of care is not necessarily derived from some well-known textbook. It is also not articulated by any judge. The standard of care is defined by some, as whatever an expert witness says it is, and what a jury will believe. In a case against any medical specialist, the specialist must have the knowledge and skill ordinarily possessed by a specialist in that field, and have used the care and skill ordinarily possessed by a specialist in that field in the same field in the same or similar locality under similar circumstances. A failure to fulfill such duty is negligence. If the jury accepts the suggestion that the surgeon mismanaged the case and that the negligence led to damage of the patient, then the physician will be liable. Conversely, if the jury believes an expert for the defendant doctor, then the standard of care, in that particular case has been met. In this view, the standard of care is a pragmatic concept, decided case-by case, based on the testimony of physician.

It is important to note that where there are two or more recognized methods of diagnosing or treating the same condition, a physician does not fall below the standard of care by using any of the acceptable methods even if one method turns out to be less effective than another method. Finally, in many jurisdictions, an unfavorable result due to an “error in judgment” by a physician is not in and of itself a violation of the standard of care if the physician acted appropriately prior to exercising his professional judgment.  

The standard of care is the way in which the majority of the physicians in a similar medical community would practice. If, in fact, the expert herself does not practice like the majority of other physicians, then the expert will have a difficult time explaining why the majority of the medical community does not practice according to his ways.

It would seem then that in the perfect world, then the standard of care in every case would be a clearly definable level of care agreed on by all physicians and patients. Unfortunately, in the typical situation the standard of care is an ephemeral concept resulting from differences and inconsistencies among the medical profession, the legal system and the public.

Thus, in most situations the standard of care is neither clearly definable nor consistently defined. It is a legal fiction to suggest that a generally accepted standard of care exists for any area of practice. At best, there are parameters within which experts will testify. Unfortunately, due to the increased reliance on technology by the medical profession and unrealistic expectations by the public, physicians may sometimes run the risk of being held to an unrealistic and unattainable standard of care. But, in the end it is the physicians that establish that standard of care.

It is uniformly acceptable that the standard of care, timewise, is defined at the time a procedure is perfumed. Dr. Laser cannot claim that his procedure is in accordance within the standard of care at the time of the procedure simply because he may have complied with the standard established many years before the actual performance of the procedure. The scarring produced by the continuous wave laser may very well represent a breach of the standard of care.